As filed with the Securities and Exchange Commission on June __, 2004
Reg. No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------------
CALYPTE BIOMEDICAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 06-1226727
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
5000 Hopyard Road, Suite 480
Pleasanton, California 94588
(925) 730-7200
(Address of principal executive offices)
-----------------------------------------
2004 Incentive Plan
(Full title of plans)
--------------------------------
J. Richard George
President and Chief Operating Officer,
5000 Hopyard Road, Suite 480,
Pleasanton, California 94588
(Name and address of agent for service)
(925) 730-7200
(Telephone number, including area code of agent for service)
Copy to:
Baratta & Goldstein
597 Fifth Avenue
New York, NY 10017
(212) 750-9700
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price Aggregate offering Amount of
to be registered Registered per share (1) Price Registration fee
- ----------------------- --------------------- -------------------- --------------------- --------------------
Common Stock 12,000,000 $0.510 $ 6,120,000 $2,110
($.03 par value) 18,000,000 $0.585 10,530,000
- ----------------------- --------------------- -------------------- --------------------- --------------------
(1) Estimated solely for the purpose of determining the amount of registration
fee and pursuant to Rules 457(c) and 457 (h) of the General Rules and
Regulations under the Securities Act of 1933, as amended, based on the average
of the closing bid and ask prices of the Company's common stock on the
Over-the-Counter Bulletin Board on June 22, 2004, which was $0.51 per share,
with respect to 12,000,000 shares and $0.585 per share, the exercise price for
options to purchase 18,000,000 shares which had been previously granted
contingent upon approval of this plan by the Company's stockholders.
1
PART I
INFORMATION REQUIRED IN THIS SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*Information required by Part 1 to be contained in the Section 10(a) prospectus
is omitted from the registration statement in accordance with Rule 428 under the
Securities Act of 1933 and the Note to Part I of Form S-8.
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Calypte Biomedical Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference herein:
(a) the Company's annual report on Form 10-KSB for the fiscal year
ended December 31, 2003 filed pursuant to Section 13 of the Exchange Act, file
number 000-20985;
(b) the Company's quarterly report on Form 10-QSB for the quarter ended
March 31, 2004;
(c) the Company's current reports on Form 8-K dated April 2, 2004 and
filed April 9, 2004, dated May 28, 2004 and filed June 1, 2004, and dated and
filed June 24, 2004; and the Company's current report on Form 8-K/A (No.1) dated
March 19, 2004 and filed June 3, 2004;
(d) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated July 10, 1996, filed pursuant
to Section 12 of the Exchange Act, including any amendment or report filed for
the purpose of updating the description.
(e) any document filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof, but prior to the filing of a post-effective amendment to this
Registration Statement which Indicates that all shares of Common Stock
registered hereunder have been sold or that deregisters all such shares of
Common Stock then remaining unsold, such documents being deemed to be
incorporated by reference herein and to be part hereof from the date of filing
of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 102 of the Delaware General Corporation Law allows a
corporation to eliminate the personal liability of directors of a corporation to
the corporation or to any of its stockholders for monetary damage for a breach
of his fiduciary duty as a director, except in the case where the director
breached his or her duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or knowingly violated a law, authorized the payment of a
dividend or approved a stock repurchase in violation of Delaware corporate law
or obtained an improper personal benefit. Calypte's Certificate of Incorporation
contains a provision that eliminates directors' personal liability as set forth
above.
3
Section 145 of the Delaware General Corporation Law, as amended,
provides that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation or is or was serving at its request in such capacity in
another corporation or business associated against expenses(including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding if he
or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
Article VII of the Company's Amended and Restated Certificate of
Incorporation provides for the indemnification of its directors to the fullest
extent permitted by the Delaware General Corporation Law. This provision in the
Amended and Restated Certificate of Incorporation does not eliminate the
fiduciary duty of the directors, and, in appropriate circumstances, equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware Law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to the Company
for acts or omissions not in good faith or involving intentional misconduct, for
knowing violations of law, for actions leading to improper personal benefit to
the director and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision does not affect
a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws. Article VI of the
Company's Bylaws provides for the indemnification of officers, directors and
third parties acting on behalf of the corporation to the full extent permitted
by Delaware law.
The Company has entered into Indemnification Agreements with its
executive officers and directors. The Indemnification Agreements provide the
Company's officers and directors with further indemnification to the maximum
extent permitted by the Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibits to this registration statement are listed in the index to
Exhibits on page 8.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
4
(i) To include any prospectus required by Section 10(a)(3) of the
securities Act 1933:
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement:
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement; provided,
however, that paragraph (1)(i) and (1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraph is
contained in periodic reports filed by the Company pursuant to Section 13 or
Section 15 (d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendments shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by mean of a post-effective amendment any
of the securities being registered hereunder that remain unsold at the
termination of the offering.
(b) The undersigned Company hereby undertakes that for purposes of determining
any liability under the Securities Act of 1933, each filing of the company's
annual report pursuant to Section 13 (a) or Section 15 (d) of the Securities and
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the above-described provisions or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing a form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pleasanton, State of California on June 25, 2004.
Calypte Biomedical Corporation
By /s/ J. Richard George
----------------------------------------
J. Richard George, President and
Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints J. Richard George and Richard Brounstein,
as his attorney-in-fact, with full power of substitution and resubstitution, for
him in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith as fully to al intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Anthony Cataldo Chairman of the Board June 25, 2004
- --------------------------- of Directors
Anthony Cataldo
/s/ J. Richard George President and Chief Executive June 25, 2004
- ---------------------------
J. Richard George Officer
/s/ Richard D. Brounstein Executive Vice President and June 25, 2004
- --------------------------- Chief Financial Officer
Richard Brounstein
/s/ John J. DiPietro Director June 25, 2003
- ---------------------------
John J. DiPietro
Director June __, 2003
- ---------------------------
Paul E. Freiman
/s/ Julius R. Krevans, M.D. Director June 25, 2004
- ---------------------------
Julius R. Krevans, M.D.
6
/s/ Zafar Randawa, Ph.D. Director June 25, 2004
- ---------------------------
Zafar Randawa, Ph.D.
/s/ Maxim A. Soulimov Director June 25, 2004
- ---------------------------
Maxim A. Soulimov
7
INDEX TO EXHIBITS
EXHIBIT SEQUENTIALLY
NO. DESCRIPTION NUMBERED PAGES
--- ----------- --------------
4.1 2004 Incentive Plan 9
5.1 Opinion of Baratta & Goldstein 20
23.1 Consent of Odenberg Ullakko Muranishi & Co., LLP,
Independent Auditors 22
23.2 Consent of Baratta & Goldstein
(filed as part of Exhibit 5.1) 20
24.1 Power of Attorney 6
8